Individual rights Antonin Scalia

1 individual rights

1.1 abortion
1.2 race, gender, , sexual orientation
1.3 criminal law
1.4 litigation , standing

individual rights
abortion

scalia argued there no constitutional right abortion , if people desire legalized abortion, law should passed accomplish it. scalia wrote in dissenting opinion in 1992 case of planned parenthood v. casey,

the states may, if wish, permit abortion on demand, constitution not require them so. permissibility of abortion, , limitations upon it, resolved important questions in our democracy: citizens trying persuade 1 , voting.

scalia repeatedly called upon colleagues strike down roe v. wade. scalia hoped find 5 votes strike down roe in 1989 case of webster v. reproductive health services not successful in doing so. justice sandra day o connor authored decision of court, allowing abortion regulations @ issue in case stand not overriding roe. scalia concurred in part. scalia wrote, justice o connor s assertion, fundamental rule of judicial restraint requires avoid reconsidering roe cannot taken . noted, can forward @ least term of carts full of mail public, , streets full of demonstrators .

the court returned issue of abortion in 2000 case of stenberg v. carhart, in invalidated nebraska statute outlawing partial-birth abortion. justice stephen breyer wrote court law unconstitutional because did not allow exception health of woman. scalia dissented, comparing stenberg case 2 of reviled cases in supreme court history: optimistic enough believe that, 1 day, stenberg v. carhart assigned rightful place in history of court s jurisprudence beside korematsu , dred scott. method of killing human child ... proscribed statute horrible clinical description of evokes shudder of revulsion .

in 2007, court upheld federal statute banning partial-birth abortion in gonzales v. carhart. university of chicago law professor geoffrey r. stone, former colleague of scalia s, criticized gonzales, stating religion had influenced outcome because 5 justices in majority catholic, whereas dissenters protestant or jewish. angered scalia such extent stated not speak @ university of chicago long stone there.

race, gender, , sexual orientation

scalia voted strike down laws make distinctions race, gender, or sexual orientation. in 1989, concurred court s judgment in city of richmond v. j.a. croson co., in court applied strict scrutiny city program requiring percentage of contracts go minorities, , struck down program. scalia did not join majority opinion, however. disagreed o connor s opinion, court, states , localities institute race-based programs if identified past discrimination , if programs designed remedy past racism. 5 years later, in adarand constructors, inc. v. peña, concurred in court s judgment , in part opinion extended strict scrutiny federal programs. scalia noted in matter view government can never have compelling interest in making past discrimination racial preferences,

to pursue concept of racial entitlement—even admirable , benign of purposes—is reinforce , preserve future mischief way of thinking produced race slavery, race privilege , race hatred. in eyes of government, 1 race here. american.

in 2003 case of grutter v. bollinger, involving racial preferences in university of michigan s law school, scalia mocked court majority s finding school entitled continue using race factor in admissions promote diversity , increase cross-racial understanding . scalia noted,

this not, of course, educational benefit on students graded on law school transcript (works , plays others: b+) or tested bar examiners (q: describe in 500 words or less cross-racial understanding). lesson of life rather law—essentially same lesson taught (or rather learned by, cannot taught in usual sense) people 3 feet shorter , twenty years younger full-grown adults @ university of michigan law school, in institutions ranging boy scout troops public-school kindergartens.

scalia argued laws make distinctions between genders should subjected intermediate scrutiny, requiring gender classification substantially related important government objectives. when, in 1996, court upheld suit brought woman wished enter virginia military institute in case of united states v. virginia, scalia filed lone, lengthy dissent. scalia said court, in requiring virginia show extremely persuasive justification single-sex admission policy, had redefined intermediate scrutiny in such way makes indistinguishable strict scrutiny .

in 1 of final decisions of burger court, court ruled in 1986 in bowers v. hardwick homosexual sodomy not protected right of privacy , criminally prosecuted states. in 1995, however, ruling gutted romer v. evans, struck down colorado state constitutional amendment, passed popular vote, forbade antidiscrimination laws being extended sexual orientation. scalia dissented opinion justice kennedy, believing bowers had protected right of states pass such measures , colorado amendment not discriminatory merely prevented homosexuals gaining favored status under colorado law. scalia later said of romer, , supreme court said, yes, unconstitutional. on basis of—i don t know, sexual preference clause of bill of rights, presumably. , liberals loved it, , conservatives gnashed teeth .

in 2003, bowers formally overruled lawrence v. texas, scalia dissented. according mark v. tushnet in survey of rehnquist court, during oral argument in case, scalia seemed intent on making state s argument chief justice intervened. according biographer, joan biskupic, scalia ridiculed majority in dissent being ready cast aside bowers when many of same justices had refused overturn roe in planned parenthood v. casey. in march 2009, openly gay congressman barney frank described him homophobe . maureen dowd described scalia in 2003 column archie bunker in high-backed chair . in op-ed new york times, federal appeals judge richard posner , georgia state university law professor eric segall described radical scalia s positions on homosexuality, reflecting apparent belief religious stances supposedly held majority of citizens should take precedence on constitution , characterizing scalia s political ideal verg[ing] on majoritarian theocracy .

criminal law

scalia (right) @ harvard law school on november 30, 2006

scalia believed death penalty constitutional. dissented in decisions hold death penalty unconstitutional applied groups, such under age of 18 @ time of offense. in thompson v. oklahoma (1988), dissented court s ruling death penalty not applied aged 15 @ time of offense, , following year authored court s opinion in stanford v. kentucky, sustaining death penalty killed @ age 16. however, in 2005, court overturned stanford in roper v. simmons, , scalia again dissented, mocking majority s claims national consensus had emerged against execution of killed while underage, noting less half of states permitted death penalty prohibited underage killers. castigated majority including in count states had abolished death penalty entirely, stating doing rather including old-order amishmen in consumer-preference poll on electric car. of course don t it, sheds no light whatever on point @ issue . in 2002, in atkins v. virginia, court ruled death penalty unconstitutional applied mentally retarded. scalia dissented, stating not have been considered cruel or unusual execute mildly mentally retarded @ time of 1791 adoption of bill of rights , court had failed show national consensus had formed against practice.

scalia disfavored court s ruling in miranda v. arizona, held confession arrested suspect had not been advised of rights inadmissible in court, , voted overrule miranda in 2000 case of dickerson v. united states in minority of 2 justice clarence thomas. calling miranda decision milestone of judicial overreaching , scalia stated court should not fear correct mistakes.

although, in many areas, scalia s approach unfavorable criminal defendants, took side of defendants in matters involving confrontation clause of sixth amendment, guarantees defendants right confront accusers. in multiple cases, scalia wrote against laws allowed alleged victims of child abuse testify behind screens or closed-circuit television. in 2009 case, scalia wrote majority opinion in melendez-diaz v. massachusetts, holding defendants must have opportunity confront lab technicians in drug cases , certificate of analysis not enough prove substance drug.

scalia maintained every element of offense helps determine sentence must either admitted defendant or found jury under sixth amendment s jury guarantee. in 2000 case of apprendi v. new jersey, scalia wrote court s majority opinion struck down state statute allowed trial judge increase sentence if judge found offense hate crime. scalia found procedure impermissible because whether hate crime had not been decided jury. in 2004, wrote court in blakely v. washington, striking down washington state s sentencing guidelines on similar grounds. dissenters in blakely foresaw scalia use case attack federal sentencing guidelines (which had failed strike down in mistretta), , proved correct, scalia led five-member majority in united states v. booker, made guidelines no longer mandatory federal judges follow (they remained advisory).

in 2001 case of kyllo v. united states, scalia wrote court s opinion in 5–4 decision cut across ideological lines. decision found thermal imaging of home unreasonable search under fourth amendment. court struck down conviction marijuana manufacture based on search warrant issued after such scans conducted, showed garage considerably hotter rest of house because of indoor growing lights. applying fourth amendment prohibition on unreasonable search , seizure arrest, scalia dissented court s 1991 decision in county of riverside v. mclaughlin, allowing 48-hour delay before person arrested without warrant taken before magistrate, on ground @ time of adoption of fourth amendment, arrested person taken before magistrate practicable. in 1990 first amendment case, r.a.v. v. st. paul, scalia wrote court s opinion striking down st. paul, minnesota, hate speech ordinance in prosecution burning cross. scalia noted, let there no mistake our belief burning cross in s front yard reprehensible. st. paul has sufficient means @ disposal prevent such behavior without adding first amendment fire .

litigation , standing

following death of scalia, paul barrett, writing bloomberg businessweek, reported that: translating liberal argot: scalia changed rules sue . issue elevated recognition of scalia notable influence on establishing , determining conditions under cases brought trial , litigation—and whom such litigation take place. david rivkin, conservative standpoint, said, (scalia) did more clarify , limit bounds , scope of judicial power supreme court justice in history, particularly in area of standing , class actions . scalia indicated long-held position time of 1983 law review article titled doctrine of standing essential element of separation of powers . summarized barrett, (scalia) wrote courts had misappropriated authority other branches of government allowing many people sue corporations , government agencies, in environmental cases . in practical sense, scalia brought attention of court authority restrict standing in class action suits in litigants may defined in descriptive terms rather well-defined , unambiguous litigants.